The United States District Court for the District of Columbia again concludes that DHS’s September 2017 decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was both subject to judicial review and arbitrary and capricious. However, the Court will continue the stay of its order of vacate for twenty days to permit the government to determine whether it intends to appeal the Court’s decision and, if so, to seek a stay pending appeal.
The Department of Homeland Security’s initial decision to rescind the Deferred Action for Childhood Arrivals (DACA) program
The Department of Homeland Security rescinded the Deferred Action for Childhood Arrivals (DACA) program on September 5, 2017 based on a one page letter from Attorney General Jeff Sessions stating that the DACA program had been “effectuated by the previous administration through executive action, without proper statutory authority and . . . after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result,” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”1 The letter instructed Acting Secretary Duke to “consider” implementing “an orderly and efficient wind-down process” for the program.2
The Department of Homeland Security’s decision to rescind DACA was arbitrary and capricious
Subsequent legal challenges were presented and on April 24, 2018, United States District Court for the District of Columbia held that the decision to rescind DACA was unlawful and set it aside, concluding both that it was reviewable under the Administrative Procedure Act (“APA”) and that the reasons given to support it were inadequate.3 Subsequent to that decision DHS issued a new memorandum concurring with and declining to disturb” its September 2017 rescission decision arguing that DACA’s rescission was neither unlawful nor subject to judicial review.4
The Department of Homeland Security can still rescind the DACA program
It is important to note that the Court did not hold that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply held that if DHS wishes to rescind the program it must give a rational explanation for its decision.5
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See NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018).
Mem. from Sec’y Kirstjen M. Nielsen (“Nielsen Memo”) [ECF No. 71-1] at 3; See Definitions.’ Mot. to Revise the Court’s April 24, 2018 Order (“Gov’t’s Mot.”) [ECF No. 74]
See 5 U.S.C. § 706(2).